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Rapid Responses: Rapid Responses published:
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Mental Capacity Act 2005
- Kailash Mohanty K Dr (13 November 2007)
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The Mental Capacity Act and Independent Mental Capacity Advocates
- Ali Hasan, Malcolm McCoubrie, John Spicer, Teresa Gorczynska (5 December 2007)
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Kailash Mohanty K Dr, Permanent member of the Employment Appeal Tribunal (High Court), London & Consultant Physician Darlington Memorial Hospital DL3 6HX
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The article by Alonzi A and Pringle M (BMJ 2007; 335: 898) on Mental Capacity Act 2005 which came in to force on 1st October 2007 did not go far enough to explain the important aspects of the above law and therefore misguides the doctors, nurses, carers etc. who are directly responsible for the patients. The starting point is, each and every patient should be presumed to have mental capacity. Therefore the act is called “mental capacity” rather than “mental incapacity act” unlike “The Adults with Mental Incapacity (Scotland) Regulations 2005. The second most important aspect of the law is that any ill treatment or neglect of the mentally ill patient will lead to criminal prosecution with an imprisonment up to 5 years in prison. 1 The enduring power of attorney (EPA) which was used to cover property and money is replaced with lasting power of attorney (LPA) to cover health, welfare, property and money. For the first time the Act approves the “living will” concept in law, which is an advance decision, for example; if an eighteen year old ( minimum age for advance decision) made an LPA saying that if he suffers from dementia or paralysis in future, all foods and drinks should be stopped. In later years when he comes to this stage and begs for food and drinks, it will be an offence to give him food and drinks. Other changes in the Act 2
K.C.Mohanty JP, LL.B (cpe), LL.M, Dip.HCE (Ethics)
Reference 1. Mental Capacity Act 2005: Easy Read Summary Department of Health, Ministry of Justice 2. Mental Capacity Act 2005 www.opsi.gov.uk Competing interests: None declared |
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Ali Hasan, Academic Fy2 in General Practice St. George's, University of London, UK, Malcolm McCoubrie, John Spicer, Teresa Gorczynska
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We enjoyed reading the editorial by Alonzi and Pringle (BMJ 2007; 335: 898). However, due to the limitations of the size of an editorial there were some specific parts of the Mental Capacity Act that are of relevance to all practicing clinicians in England and Wales. One of these is the introduction of Independent Mental Capacity Advocates [IMCAs]. Where a responsible clinician feels that a patient lacks capacity to make a certain decision, and does not have an appropriate (as decided by the clinician - usually a named, specific, and unpaid) individual who can be consulted provide guidance or support for decisions, there is a legal duty to consult the IMCA service to help explore all options available to that patient. There are a number of caveats and exclusions that are of relevance, such as emergency treatment, where the doctrine of necessity would take priority. The IMCA's role is to support and represent the patient in the decision making process. They will undertake a series of information- gathering activities, including reviewing of patient notes, speaking to the patient and other relevant people, investigation of all alternatives, management of communication modalities (eg. Makaton), and presentation of this data to responsible clinicians in a written report. Where it is appropriate to consult an IMCA it is a statutory duty to do so (and the converse is that it is illegal not to), as well as to read the written report that they produce after reviewing each case, and to take into account the material therein. If there is concern from a particular clinician's decision IMCAs are also empowered to challenge decisions informally, seek a second opinion if they feel necessary, make official complaints, and in the most serious circumstances consider and make an appeal to the Court of Protection. The role of the IMCA is potentially applicable to the majority of people working in health provision. The MCA also specifies that their role is subject to extension and reform - Section 41 of the act states that an appropriate body (in England, the Secretary of State for Health) has the "power to adjust the role of the independent mental capacity advocate" - allowing for evolution. This already been seen with the development of their role in the deprivation of liberty safeguards. It is important to raise awareness of the new legal duty of clinicians to consult with IMCAs. Additionally, we feel that the development of the IMCA service is one of relevance to all practicing clinicians, as mentioned above, and we would welcome a more detailed article or series of articles on the Act and its applications both in practice and in research. Ali Hasan, Fy2 Doctor, Academic Foundation Programme, St. George's University of London (email ahasan@sgul.ac.uk) Malcolm McCoubrie, Senior Lecturer in Departments of Community Health and Mental Health, St. George's University of London John Spicer, Clinical Tutor in Medical Ethics and Law, St. George's University of London; Associate Director, Department of General Practice, London Deanery Teresa Gorczynska, Head of IMCA, Advocacy Partners, London Competing interests: None declared |
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